Katie Wagner, February 2013
Š 2013 Volunteer Lawyers for the Arts
INTRODUCTION Who
We Are
Established in 1969, Volunteer Lawyers for the Arts is the pioneer in arts-related legal aid and educational programs about the legal and business issues that affect artist and arts organizations.
VLA
Services • Legal Services • MediateArt • Education • Advocacy
COPYRIGHT Title 17, U.S. Code
INTRODUCTION TO COPYRIGHT Copyright
law encourages the creation of art and culture by protecting intellectual property and rewarding authors and artists with a set of exclusive rights Intellectual property includes literary and artistic works such as novels, poems and plays; films and musical works; artistic works as drawings, paintings, photographs and sculptures, and architectural designs
COPYRIGHT & THE CONSTITUTION The U.S. Constitution provides, under Article 1, Section 8, Clause 8, that “Congress shall have power . . . [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings.�
WHAT IS COPYRIGHT? Copyright
is a form of protection provided by the laws of the United States to the authors of original works of authorship that are fixed in a tangible form. This protection is available to both published and unpublished works. The owner of the copyright has certain exclusive rights to use the work, though the scope of Copyright protection is not unlimited.
A “BUNDLE OF RIGHTS” The
Copyright Act of 1976 grants the creator a bundle of intangible, exclusive rights over their work, including:
Reproduction Distribution Derivative Works Public Performance Public Display For Sound Recordings, Public Performance by Means of Digital Audio Transmission
VISUAL ARTISTS RIGHTS ACT OF 1990 (VARA) 17 U.S.C. ยง 106A
VISUAL ARTISTS RIGHTS ACT OF 1990 Protects
the moral rights of an artist. Moral rights are based on the notion that an artist’s livelihood is dependent on the presentation of his work as created, and alteration can damage the artist’s reputation.
VISUAL ARTISTS RIGHTS ACT OF 1990 What
is a work of visual art?
Paintings Drawings Prints Sculptures Still Photographs Produced for Exhibition
It
must exist in a single copy, or a limited edition of 200 copies or fewer, signed and consecutively numbered by the author 17 U.S.C. § 101
VISUAL ARTISTS RIGHTS ACT OF 1990 17
U.S.C. § 106A: . . . the author of a work of visual art has –
Right of Attribution Right of Integrity
Additional
Notes
Right attaches regardless of ownership of copyright or the actual copies Can be waived, but only in a signed writing Duration is generally the life of the artist Violation leads to an action for infringement
COPYRIGHT OWNERSHIP Copyright “vests initially in the author or authors of the work.”
RIGHT TO ASSIGN AND LICENSE o
o
Mere Ownership of Material Object that Embodies Protected Work Itself Does Not Convey Any Rights in the Copyright. Author May Assign or License Any Combination of the Copyright Bundle of Rights to Others.
JOINT WORKS “A work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.�
JOINT WORKS To
qualify as a joint work, the authors must each make independent copyrightable contributions and must fully intend to be a co-author. Each author will own an undivided interest in the completed work, each with an independent right to use or grant non-exclusive licenses of the work without the permission of the other joint owner. However, each owner must account to other coowners for any profits derived from the use or license of the work.
WORKS-FOR-HIRE
WORKS-FOR-HIRE Works-for-hire
are:
(1) works prepared by an employee within the scope of his or her employment; or (2) those specially ordered or commissioned
Ownership
of works made by employees vests exclusively in the employer; although the employee may have some royalty rights in the work, they do not have the ownership rights.
COMMISSIONED WORKS If
the creator is not an employee acting within the scope of his employment, then to be considered a work for hire, the work (1) must have been commissioned in a written agreement, (2) signed by both parties, (3) specifically stating that the work would be “work for hire.”
THE WORK MUST FALL WITHIN AT LEAST ONE OF THE FOLLOWING NINE NARROW STATUTORY CATEGORIES OF COMMISSIONED WORKS LISTED IN THE
U.S.C. § 101: Translation Contribution
to a motion picture or other audiovisual work Contribution to a collective work (such as a magazine) As an atlas As a compilation As an instructional text
As
COPYRIGHT ACT 17
a test As answer material for a test Supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).
OBTAINING COPYRIGHT No publication or registration or other action in the Copyright Office is required to secure copyright. Copyright protection automatically attaches to a work once it is in a fixed form.
ADVANTAGES OF REGISTRATION Establishes
a public record of the copyright claim Allows someone searching for the owner of a copyright to find the current owner and permits those seeking to purchase or license copyrights to find the appropriate owner Necessary before filing an infringement suit for works of U.S. origin
COPYRIGHT REGISTRATION Library
of Congress Copyright Office 101 Independence Avenue, S.E. Washington, D.C. 2 www.copyright.gov
Fees have changed as of August 1, 2009 $50 using paper Form CO $35 per electronic filing (eCO) But check with Library of Congress for other fees
REGISTRATION OF A COLLECTION OF WORKS WITH A SINGLE APPLICATION A
collection of works may be registered with a single application if either of the following requirements is met:
The collection is made up of unpublished works by the same author and owned by the same claimant; or
The collection is made up of multiple published works contained in the same unit of publication and owned by the same claimant.
COPYRIGHT DURATION For
works created after Jan. 1, 1978: life of author plus 70 years. For anonymous and for “works made for hire,” 95 years from publication or 120 years from creation, whichever comes first. For “joint works”: date of death of the last surviving joint author plus 70 years. For works created prior to 1978: 95 years.
COPYRIGHT INFRINGEMENT Anyone who violates any of the exclusive rights of the copyright owner, or who imports unauthorized copies into the U.S., is an infringer of the copyright.
RECOURSE FOR INFRINGEMENT Cease
& Desist Letters
Suing
for Infringement in Court
Direct Copyright Infringement Secondary Copyright Infringement Statute of Limitations – 3 years
DIGITAL MILLENNIUM COPYRIGHT ACT Safe Harbor Provisions
DIGITAL MILLENNIUM COPYRIGHT ACT •
•
•
DMCA was enacted in response to the absence of laws addressing the relationship between technology and copyright DMCA includes Safe Harbor Provisions for Online Service Providers (OSPs) to Avoid Liability for Copyright Infringement To obtain protection of Safe Harbor, OSPs must comply with Notice and Takedown Procedures
ONLINE SERVICE PROVIDERS: 4 CATEGORIES
CONDUITS: Transitory Communications (e.g., Broadband)
CACHING SERVICES: System caching (e.g., temporary storage of material)
WEB HOSTS: Storage of materials at the direction of a user (e.g., host sites, mailing lists, news groups, chat forums)
No Knowledge of Infringement; Lacked Ability to Control It; Did Not Encourage It; Did Not Profit Directly From It; Expeditiously Removed Infringing Material After Receiving Proper Notification
INFORMATION LOCATION TOOLS: (i.e., search engines and directories)
SAFE HARBOR PROVISIONS •
Limited Liability by Reason of OSP
Transmitting, Routing or Providing Connections for Material, or • Intermediate and Transient Storage IF: (1) initiated by or at direction of person other than OSP; (2) carried out through automatic technical process without selection of material by OSP; (3) OSP does not select recipients of material except by automatic response to request of other person; (4) no copies are retained for longer than necessary to transmit, route or provide connection; and (5) material transmitted is not modified. •
TAKEDOWN POLICY AND DESIGNATED AGENT
Online Service Providers are required to
Adopt and Implement a Takedown Policy for Copyright Infringers
Designate an Agent (“Designated Agent”) with the Register of Copyrights, and
Post Policy and Designation in a Publicly Accessible Location on the OSP’s website.
TAKEDOWN NOTICE PROCEDURES
To initiate takedown of infringing material, provide a written notice to the designated agent of a service provider that includes substantially the following:
A physical or electronic signature of an authorized person or owner of an exclusive right that is allegedly infringed Identification of the copyrighted work or a representative list Identification of infringing material that requires removal or disabled access along with its location Contact information of the complaining party Statement that complaining party has a good faith belief that use of the material in the manner complained of is not authorized by copyright owner, its agent, or the law Statement that information in notification is accurate and that complaining party is authorized to act on behalf of owner
COUNTER NOTICE PROCEDURE
A physical or electronic signature of the subscriber
Identification of infringing material that has been removed or access disabled along with its location
A statement under penalty of perjury that subscriber has a good faith belief that material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled
Subscriber’s contact information and statement that subscriber consents to Federal Court jurisdiction
If counter notice is filed, OSP must notify original filer of notice and, if no further action is taken within 10-14 days, restore work which is taken down.
FAIR USE A fairly subjective test.
FAIR USE The
Copyright Act provides that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research is not an infringement. . .” [17 U.S.C. § 107] Typically any use that is deemed by the law to be “fair” creates some social, cultural or political benefit that outweighs any harm suffered by the copyright owner because the fair use doctrine ensures that the public will derive the benefit of the author’s “useful art”.
FOUR FACTORS TO FAIR USE 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
SUB-FACTORS OF FIRST FACTOR Is
use transformative?
Is
use for commercial or for non-profit purposes?
Is
use parody or satire?
Was
it copied in bad faith?
FAIR USE: PARODY VERSUS SATIRE Parody
Literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule
Satire
The use of a work as a vehicle to make fun of something other than the work itself, such as society or a political figure
CONTACT INFORMATION If
you have specific legal concerns pertaining to your art, please contact us!
ART LAW LINE: 212-319-ARTS (2787), EXT. 1 One East 53rd Street, 6th Floor, New York, NY 10022 Follow us! Twitter: @VLANY facebook.com/vlany.org
© 2013 Volunteer Lawyers for the Arts